Bober, Estelle v. Glaxo Wellcome PLC

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3440
Estelle Bober, Executor of the Estate
of Mortimer Bober, on behalf of Mortimer
Bober and all others similarly situated,
Plaintiff-Appellant,
v.
Glaxo Wellcome PLC, Warner Lambert
Corporation, and Warner Wellcome
Consumer Healthcare Incorporated,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 3243--James B. Zagel, Judge.
Argued December 1, 2000--Decided April 5, 2001
Before Posner, Diane P. Wood, and Williams, Circuit
Judges.
Williams, Circuit Judge. Mortimer Bober brought
a class action lawsuit against the firms that
manufacture and market Zantac 75 and Zantac 150,
the over-the-counter and prescription strength
forms of the stomach acid reliever ranitidine, on
the ground that the firms provide consumers with
false and misleading information about the
substitutability of the two drugs, in violation
of Illinois law. The district court dismissed
Bober’s claims under Fed. R. Civ. P. 12(b)(6)
after concluding that Illinois law exempted the
statements at issue from being a possible basis
of liability. We affirm.
I
Zantac 150 is manufactured and sold by British
drug company Glaxo Wellcome PLC and its American
subsidiary Glaxo Wellcome, Inc. The Food and Drug
Administration ("FDA") has approved it for use in
the treatment of various digestive tract
conditions, including certain kinds of ulcers and
certain esophageal conditions. As its name
suggests, it contains 150 milligrams of
ranitidine. And, it is available only with a
prescription.
Zantac 75 is manufactured by Glaxo Wellcome,
Inc. and is sold by Warner-Lambert Consumer
Healthcare, a joint venture formed by Glaxo
Wellcome, Inc. and Warner-Lambert Company,
another American drug company. According to its
FDA-approved packaging, it is to be used for the
relief and prevention of heartburn associated
with acid indigestion and sour stomach. As its
name too suggests, it contains 75 milligrams of
ranitidine. But, it may be purchased without a
prescription.
Bober’s complaint alleges that Glaxo Wellcome
PLC and the other three defendants ("Glaxo")
provide false and misleading information
regarding whether Zantac 75 can be substituted
for Zantac 150. The answer to that question was
important to Bober because, at the time he filed
this lawsuit, he was paying $1.47 per tablet for
the Zantac 150 his doctor had prescribed for him,
while an equivalent dose of Zantac 75 (two
tablets) cost $.80. In an effort to obtain
information on the substitutability of Zantac 75
and Zantac 150, Bober twice called a consumer
hotline for Zantac 75 users set up by Warner-
Lambert. When Bober first called the Zantac 75
consumer hotline, the hotline operator "told Mr.
Bober that Zantac 75 and Zantac 150 were not the
same medications, and that Mr. Bober could not
substitute two Zantac 75 tablets for one Zantac
150 tablet." When Bober called the hotline a
second time, a recorded message advised Bober,
"If your doctor has directed you to take
prescription Zantac, you should not substitute
Zantac 75 for your prescription."
Bober’s complaint also notes that Warner Lambert
maintains a web site providing information about
Zantac 75, although the complaint does not say
whether Bober ever visited the web site. At the
time Bober filed his complaint, a page on that
web site answering frequently asked questions
about Zantac 75 responded to a question about
whether Zantac 75 could be substituted for Zantac
150 by informing visitors, "If your physician has
prescribed a medicine, you should not substitute
any other medicine for your prescription. You
should always ask your physician any questions
you may have about changing your medication."
In his complaint, Bober claims that the three
quoted statements are false and misleading
because, contrary to what the three statements
imply, Zantac 75 and Zantac 150 contain the same
medicine (ranitidine) and are therefore readily
substitutable. On that basis, Bober’s complaint
alleges that the three statements violate the
Illinois Consumer Fraud and Deceptive Business
Practices Act ("CFA") and the similar laws of
other states./1 Bober’s complaint also alleges
that the defendants illegally conspired to
violate the CFA and that the defendants were
unjustly enriched by their illegal practices. The
district court dismissed Bober’s claims under
Fed. R. Civ. P. 12(b)(6), reasoning that the CFA
exempted the three statements at issue from being
possible bases of liability under the CFA because
the statements were authorized by state and
federal law. As the statements at issue did not
violate the CFA, the district court further
concluded that the statements would not support
Bober’s common law claims. Bober’s estate, taking
up Bober’s claims in the wake of his recent
passing, appeals. As with all Rule 12(b)(6)
dismissals, we review the district court’s
decision de novo, taking the plaintiff’s
allegations as true and drawing all reasonable
inferences in his favor. Jacobs v. City of
Chicago, 215 F.3d 758, 764-65 (7th Cir. 2000).
II
A
In relevant part, the CFA provides:
Unfair methods of competition and unfair
or deceptive acts or practices, including
but not limited to the use or employment
of any deception, fraud, false pretense,
false promise, misrepresentation or the
concealment, suppression or omission of
any material fact, with intent that others
rely upon the concealment, suppression or
omission of such material fact, or the use
or employment of any practice described in
Section 2 of the "Uniform Deceptive Trade
Practices Act", approved August 5, 1965,
in the conduct of any trade or commerce
are hereby declared unlawful whether any
person has in fact been misled, deceived
or damaged thereby.
815 Ill. Comp. Stat. 505/2. To establish a
violation of the CFA’s prohibition on deceptive
acts or practices, a plaintiff must prove that:
(1) the defendant engaged in a deceptive act or
practice; (2) the defendant intended that the
plaintiff rely on the act or practice; and (3)
the act or practice occurred in the course of
conduct involving a trade or commerce. Zekman v.
Direct Am. Marketers, Inc., 695 N.E. 2d 853, 860
(Ill. 1998); Siegel v. Levy Org. Dev. Co., 607
N.E.2d 194, 198 (Ill. 1992). Only the first of
these requirements is at issue here.
In particular, Glaxo argues that the statements
Bober’s complaint identifies as the deceptive
acts or practices supporting his CFA claim are,
as a matter of law, not deceptive. Under the CFA,
a statement is deceptive if it creates a
likelihood of deception or has the capacity to
deceive. People ex rel. Hartigan v. Knecht
Servs., Inc., 575 N.E.2d 1378, 1387 (Ill. App.
Ct. 1991); see also Graphic Sales, Inc. v. Sperry
Univac Div., Sperry Corp., 824 F.2d 576, 580 (7th
Cir. 1987). Thus, in determining whether the
allegations in Bober’s complaint state a claim
for relief that satisfies the requirements of
Rule 12(b)(6), we ask whether the allegedly false
and misleading statements on which Bober based
his CFA claim can be read to create a likelihood
of deception or to have the capacity to deceive.
Bober’s estate contends that the three
statements at issue are deceptive in essentially
three ways. First, Bober’s estate asserts that
the statements falsely claim that Zantac 75 and
Zantac 150 do not contain the same medicine. None
of the statements, however, expressly makes such
a claim. The statements do claim that the two
drugs are different medications, but that claim
is completely true. The drugs are approved for
very different maladies, went through different
approval processes, and are sold in different
ways. Moreover, to the extent that anyone could
imply from the statements at issue that the drugs
contain different medicine, information available
to Zantac users, and in Bober’s possession, would
dispel any such implication. Cf. Tudor v. Jewel
Food Stores, Inc., 681 N.E.2d 6, 8 (Ill. App. Ct.
1997) (dismissing a CFA claim on the ground that
the allegedly deceptive act was not deceptive in
light of all the information available to the
plaintiff); Saunders v. Michigan Ave. Nat’l Bank,
662 N.E. 2d 602, 607-08 (Ill. App. Ct. 1996)
(same). The web page that answers frequently
asked questions about Zantac 75 (a printout of
which is attached to Bober’s complaint) expressly
states that Zantac 75 and Zantac 150 contain the
same medicine. Likewise, the packaging
information for Zantac 75 (which is also attached
to Bober’s complaint) strongly suggests the same
fact when it explains that the active ingredient
in Zantac 75 is ranitidine and promotes Zantac
75’s safety by noting that prescription strength
Zantac has an excellent safety record. Put
simply, none of the three statements at issue can
reasonably be read as falsely claiming or
implying that Zantac 75 and Zantac 150 do not
contain the same medicine.
Second, Bober’s estate asserts that, in
describing Zantac 75 and Zantac 150 as different
medications and discouraging substitution of the
former for the latter, the three statements at
issue misrepresent the therapeutic equivalence of
equal doses of the two drugs (an equivalence we
assume exists in reviewing the sufficiency of
Bober’s complaint) by implying that Zantac 150 is
more effective than Zantac 75 in treating the
conditions for which Zantac 150 is prescribed./2
While it is clear that the statements at issue go
out of their way to avoid any implication that
equal doses of the drugs are therapeutically
equivalent,/3 we think that the statements also
avoid any implication that the drugs are not
therapeutically equivalent. In the context of all
the information available to Bober and other
Zantac users, including the three statements at
issue, the packaging information for Zantac 75,
and the Zantac 75 frequently asked question web
page, it should have been clear to Bober and
other Zantac users both that Zantac 75 and Zantac
150 contain the same active ingredient and that
inquiries about substituting the former for the
latter are properly directed to a user’s treating
physician. The available information, in our
view, dispels any tendency to deceive that the
statements at issue might otherwise have had. Cf.
Tudor, 681 N.E.2d at 8; Saunders, 662 N.E. 2d at
607-08. Accordingly, none of the three statements
at issue can reasonably be read as
misrepresenting the therapeutic equivalence of
equal doses of Zantac 150 and Zantac 75.
Finally, Bober’s estate asserts that the
statements at issue both claim and imply that
Zantac 75 simply cannot be substituted for Zantac
150, despite the fact that it would be perfectly
appropriate for a doctor to recommend such a
substitution. Again, the problem for Bober’s
estate is that examining the statements at issue,
together and in the context of the other
information available to Zantac users, eliminates
any possibility of deception with regard to
substitutability. Cf. Tudor, 681 N.E.2d at 8;
Saunders, 662 N.E.2d at 607-08. From such a
perspective, the statements discouraging
substitution can only be read to discourage users
from making a substitution without consulting
their physicians. So read, the statements do not
falsely claim or imply that Zantac 75 cannot be
substituted for Zantac 150. As a matter of law,
none of the three statements on which Bober based
his CFA claims is deceptive.
B
Alternatively, Glaxo argues that all three of
the statements are protected by section 10b(1) of
the CFA, which excludes from liability "actions
. . . specifically authorized by laws
administered by any regulatory body or offices
acting under statutory authority of this State or
the United States." 815 Ill. Comp. Stat.
505/10b(1). It also argues that the statements
were "labeling" specifically authorized by the
FDA under authority of the Food, Drug, and
Cosmetic Act (FDCA), 21 U.S.C. 321 et seq.
The case law interpreting the relevant portion
of the CFA’s exemption provision is not entirely
clear on the question of what is meant by
"specifically authorized." Contrast Weatherman v.
Gary-Wheaton Bank of Fox Valley, N.A., 713 N.E.2d
543, 547-51 (Ill. 1999); Lanier v. Assocs. Fin.,
Inc., 499 N.E.2d 440, 447 (Ill. 1986); Jackson v.
South Holland Dodge, Inc., 726 N.E.2d 1146, 1151-
55 (Ill. App. Ct. 2000); Mario’s Butcher Shop &
Food Ctr., Inc. v. Armour & Co., 574 F. Supp.
653, 655-56 (N.D. Ill. 1983), with Martin v.
Heinhold Commodities, Inc., 643 N.E.2d 734, 742-
43 (Ill. 1994); Pawlikowski v. Toyota Motor
Credit Corp., 722 N.E.2d 767, 770-75 (Ill. App.
Ct. 1999), appeal denied, 729 N.E.2d 498 (Ill.
2000); Heastie v. Cmty. Bank of Greater Peoria,
690 F. Supp. 716, 720-21 (N.D. Ill. 1988). See
also Robinson v. Toyota Motor Credit Corp., 735
N.E.2d 724, 733-34 (Ill. App. Ct. 2000), appeal
allowed, 742 N.E.2d 335 (Ill. 2000); Aurora
Firefighter’s Credit Union v. Harvey, 516 N.E.2d
1028, 1032-34 (Ill. App. Ct. 1987).
However, we think that the Illinois cases can
be reconciled. The two key decisions from the
Illinois Supreme Court are Weatherman, 713 N.E.2d
543, and Martin, 643 N.E.2d 734. In Weatherman,
the court found that a disclosure of certain real
estate closing fees presented in a summary form
complied with specific federal regulatory
requirements. In so ruling, it found that the
summary did not violate the CFA, because it was
"specifically authorized" by the federal Real
Estate Settlement Procedures Act, or RESPA. This
was enough to entitle the summary to an exemption
under section 10b(1). 713 N.E.2d at 550. The
court was aware of, and distinguished, its
earlier opinion in Martin. There it had found
that the exemption was not available for a
document that only facially or technically
complied with a disclosure requirement imposed by
the Commodities Futures Trading Commission. In
spite of this technical compliance, the document
in fact misrepresented the nature of a particular
fee. The court also pointed out that the CFTC
itself had issued an opinion holding that
language in technical compliance with the
regulations may nevertheless violate federal
regulations if it is misleading in context. 643
N.E.2d at 742-43.
Taken together, the cases stand for the
proposition that the state CFA will not impose
higher disclosure requirements on parties than
those that are sufficient to satisfy federal
regulations. If the parties are doing something
specifically authorized by federal law, section
10b(1) will protect them from liability under the
CFA. On the other hand, the CFA exemption is not
available for statements that manage to be in
technical compliance with federal regulations,
but which are so misleading or deceptive in
context that federal law itself might not regard
them as adequate.
The question is thus whether the statements
Bober complains of are sufficiently within what
is authorized by federal law that Glaxo is
entitled to section 10b(1) protection. On this
question, we limit our examination to the
operator’s statement--the only one that is even
potentially misleading./4 The regulations
implementing the FDCA are extensive and extremely
detailed. Of particular relevance to the
"different medications" part of the operator’s
statement are the regulations defining what
constitutes a "new drug." A drug may be
considered new based on "[t]he newness of use of
such drug in diagnosing, curing, mitigating,
treating, or preventing a disease . . . even
though such drug is not a new drug when used in
another disease or to affect another structure or
function of the body." 21 C.F.R. sec.310.3(h)(4).
Before any "new drug" can be marketed, the
manufacturer has to file a "new drug application"
and meet the various testing, production, and
labeling requirements set out in the Code. There
is no dispute that Zantac 75 satisfies this
definition of new drug. Even if we assume that in
all other relevant respects it is identical to
Zantac 150, Zantac 75 is marketed as a non-
prescription treatment for acid indigestion,
while Zantac 150 is a prescription drug treatment
for duodenal and gastric ulcers (among other
things). Indeed, Glaxo submitted a new drug
application prior to marketing Zantac 75. Glaxo
therefore is not just specifically authorized to
call these different "drugs"; it is required to
do so. The only remaining question for our
purposes is the relation between the term "drug"
and the term "medication." Unlike "drug,"
"medication" does not appear to be a term of art
in the federal regulations. The regulations
governing the labeling and advertising of OTC
drug products, however, provide as follows:
(i) the following terms may be used
interchangeably in the labeling of OTC
drug products, provided such use does not
alter the labeling of OTC drug products . . .
(52) "medication(s)" or
"medicine(s)" or "drug(s)"
21 C.F.R. sec.330.1(i). This provision indicates
that, with respect to labeling Zantac 75, Glaxo
was specifically authorized to use the terms
"drugs" and "medications" as synonyms. Given that
for federal regulatory purposes Zantac 75 and
Zantac 150 were indeed different "drugs," the
express terms of the regulations taken as a whole
specifically authorized Glaxo to say that they
were different "medications," even if the
statement may have led Mr. Bober as a layperson
to misunderstand what was being said. See
Weatherman, 713 N.E.2d at 550 (concluding that
where summary fee statement was sufficient to
satisfy federal regulatory requirements,
allegation that statement was misleading to
customers was properly dismissed).
The second half of the operator statement is
not so easily dealt with, but ultimately we
believe that the Illinois courts would find that
it too was specifically authorized. The situation
here is not a common one. When Mr. Bober asked
whether he could substitute Zantac 75 for Zantac
150, the operator said he "could not." In
assessing whether this was a specifically
authorized response, it is significant that the
federal regulations governing drug labeling and
advertising imposed competing constraints on
Glaxo, such that Mr. Bober’s question was
particularly tricky to answer. The manufacturer
of a drug may not recommend or even suggest uses
for a drug that are not approved by the FDA or
supported by sufficient medical evidence. 21
C.F.R. sec.330.1(d) (OTC advertising); 21 C.F.R.
sec.202.1(e)(6) (prescription advertising). There
is no dispute that Zantac 75 had not been tested
for the use to which Mr. Bober sought to put it,
which means that Glaxo was prohibited from even
suggesting that substitution would be
appropriate. A drug is considered to be
misbranded if its labeling or advertising makes
any "statements comparing the safety or
effectiveness, either greater or less of the drug
with other agents for the same indication" if
that statement is not supported by "adequate and
well-controlled studies." 21 C.F.R.
sec.201.57(c)(3)(v) (prescription labeling); 21
C.F.R. sec.201.6(a) (general labeling). Glaxo
concedes that it had not conducted any studies
that would have allowed it to say that two Zantac
75 tablets would be less (or more) effective than
one Zantac 150 tablet for treatment of Mr.
Bober’s illness. Glaxo’s position was thus
precarious. It had to answer Mr. Bober’s question
in a way that did not suggest he could use Zantac
75 for an "off label" purpose, while at the same
time it had to avoid the unsubstantiated
suggestion that Zantac 150 would be superior to
Zantac 75. This was a fine line to walk, and one
not considered in Martin or Weatherman; unlike in
those cases, Glaxo was required by federal law to
say a certain amount and simultaneously required
not to say too much.
Glaxo chose to reconcile its competing
obligations by answering Bober’s question with
the statement "you cannot substitute" Zantac 75
for Zantac 150. This statement was technically
accurate, because only Bober’s doctor could
approve an "off-label" use for Zantac 75 and the
substitution of one drug for the other. The
statement was also consistent with those federal
regulations requiring Glaxo to refrain from
suggesting "off-label" uses for Zantac 75. In
protecting itself on that side, however, Glaxo
predictably opened itself up to the claim Mr.
Bober is now making, namely that the statement
improperly suggested that Zantac 150 was superior
to Zantac 75. While Glaxo could have added "ask
your doctor" without being accused of suggesting
an "off-label" use and thus perhaps struck a more
perfect balance between its competing regulatory
obligations, under the circumstances what it
chose to say and not to say was a sufficiently
careful compromise to fall within what is
specifically authorized by federal law.
The pharmaceutical industry is highly regulated,
both at the federal level and internationally.
Technical requirements abound, and it is not only
possible but likely that ordinary consumers will
find some of them confusing, or possibly
misleading as the term is used in statutes like
Illinois’s CFA. But, recognizing the primacy of
federal law in this field, the Illinois statute
itself protects companies from liability if their
actions are authorized by federal law. (Such
protection would amount to nothing if it applied
only to statements that were not susceptible to
misunderstanding; those statements would escape
liability under the CFA in any event.) Because
Glaxo’s statements fall within the boundaries
established by federal law, under Weatherman and
Martin they are entitled to protection under
section 10b(1) of the CFA./5
C
Bober’s complaint does not state a claim for
relief under the CFA, and the district court
properly dismissed Bober’s CFA claim. Because
Bober’s civil conspiracy claim depends on his
establishing that the defendant drug companies
violated the CFA, the district court also
properly dismissed that claim. See Adcock v.
Brakegate, Ltd., 645 N.E. 2d 888, 894 (Ill.
1994). Our conclusion is the same with respect to
Bober’s unjust enrichment claim, as, in the
absence of any deception on the part of the
defendants, the requisite violation of
"fundamental principals of justice, equity, and
good conscience" is not present. See Alliance
Acceptance Co. v. Yale Ins. Agency, Inc., 648
N.E.2d 971, 976-77 (Ill. App. Ct. 1995) (quoting
HPI Health Care Servs., Inc. v. Mt. Vernon Hosp.,
Inc., 545 N.E.2d 672, 678-79 (Ill. 1989)).
III
For the foregoing reasons, Bober’s complaint
fails to state a claim for relief. Accordingly,
we Affirm the judgment of the district court.
/1 Neither party has addressed whether other states
actually have similar laws or whether those laws
differ in any material respect from the CFA.
Accordingly, we will assume, as the parties
assume, that the sufficiency of Bober’s
allegations in this regard depends entirely on
whether his complaint states a claim under the
CFA.
/2 Relatedly, Bober’s estate also asserts that
because there is no substantiation for the
proposition that Zantac 150 is more effective
than Zantac 75 in treating conditions for which
Zantac 150 is prescribed, the statements at issue
violate the CFA by implying that that proposition
is correct. As we explain below, the statements
do not, in our view, carry any implication about
the relative effectiveness of the two drugs. In
any event, the case law Bober’s estate cites in
support of its claim that a lack of
substantiation can be deceptive makes clear that
a lack of substantiation is deceptive only when
the comparative claim at issue implies that there
is substantiation for the claim made. BASF Corp.
v. Old World Trading Co., 41 F.3d 1081, 1088-91
(7th Cir. 1994) (interpreting the Lanham Act’s
ban on false advertising). Here, the statements
at issue do not imply that there is
substantiation for a claim about the relative
effectiveness of Zantac 75 and Zantac 150.
/3 A prudent strategy, to say the least, given that
the FDA prohibits drug companies from promoting
off-label uses for medications they manufacture
or market, 21 C.F.R. sec. 330.1(d).
/4 For the reasons discussed above, we believe that
none of the statements is deceptive, but because
the concurring judge disagrees with respect to
the operator’s statement, we also consider
whether that statement is excluded from liability
under section 10b(1).
/5 To the extent the defendants also argue that
state and federal law exempt them from liability
regardless of how the CFA’s exemption provision
is interpreted, we decline to address that
argument.
DIANE P. WOOD, Circuit Judge, concurring. Although
I agree with the majority’s ultimate disposition
of this case, my reasons differ in one
significant respect from theirs. The majority
finds that none of the three statements on which
Bober based his claim under the Illinois Consumer
Fraud and Deceptive Business Practices Act (CFA),
815 ILCS 505/1 et seq., is deceptive. For the
reasons I explain below, I believe this gives too
cramped a reading to Illinois’s CFA. In my
opinion, plaintiff Estelle Bober, representing
the Estate of Mortimer Bober and others similarly
situated, has stated at least one claim under the
CFA. I do agree, however, with the majority’s
alternative argument in Part II.B. of its opinion
that the three statements Glaxo made fell within
the boundaries permitted by the Food and Drug
Administration and thus were excluded from CFA
liability pursuant to section 10b(1) of the CFA,
815 ILCS 505/10b(1). I am therefore happy to
concur in the result.
As the majority initially acknowledges, we are
dealing with three separate statements that the
plaintiffs claim were deceptive or misleading for
purposes of the Illinois CFA. These statements
were made at different times, and in one instance
through an entirely different medium. The first
statement was made by the hotline operator to
whom Mr. Bober first spoke. The operator,
according to the complaint (which we do not
second-guess at this stage), told Mr. Bober two
things: that Zantac 75 and Zantac 150 were not
"the same medications," and that Mr. Bober could
not substitute two Zantac 75 tablets for one
Zantac 150 tablet. I refer to this as the
"operator" statement. The second statement was
contained in a recorded message that Mr. Bober
reached when he made a second telephone call
("the recorded statement"). That one said nothing
about the comparison between Zantac 75 and Zantac
150, but it advised him that if his doctor "ha[d]
directed [him] to take prescription Zantac, [he]
should not substitute Zantac 75 for [his]
prescription." The third and last statement was
found on the web site that Warner Lambert
maintains ("the web site statement"). In a
section of the site devoted to "frequently asked
questions," Mr. Bober found the following
statement: "If your physician has prescribed a
medicine, you should not substitute any other
medicine for your prescription. You should always
ask your physician any questions you may have
about changing your medication."
Although the majority acknowledges that these
were three representations made at three
different times, it analyzes the Bober claim as
if he either heard everything at once or as if no
individual statement could be deceptive for CFA
purposes if the aggregate of everything the
defendants said about Zantac would ultimately
have given an accurate picture. Indeed, at page
5, ante, the majority squarely states that "to
the extent that anyone could imply from the
statements at issue that the drugs contain
different medicine, information available to
Zantac users, and in Bober’s possession, would
dispel any such implication." In apparent support
of that point, it then cites two Illinois cases
for the broad proposition that the claim of
deception had to be assessed in light of all
available information, even information that Mr.
Bober might not have seen personally. See Tudor
v. Jewel Food Stores, 681 N.E.2d 6 (Ill. App. Ct.
1997); Saunders v. Michigan Ave. Nat’l Bank, 662
N.E.2d 602 (Ill. App. Ct. 1996).
But neither Tudor nor Saunders stands for such
a sweeping rule. In both these cases, all of the
relevant information that the court thought
should be taken into account when assessing
deceptiveness was given to the plaintiff at the
time of the disputed transaction. Even if we can
assume that consumers will assimilate all the
information they are given on a given occasion,
I find no Illinois case holding that a company
can avoid potential liability for deceptive
statements if it has buried further explanatory
material on a web site or in a brochure that some
consumers may never see. It is even worse if, as
here, the absent information would only
potentially save an otherwise misleading
statement. I am quite troubled by the implication
one could draw from the majority’s opinion that
consumers have such an unbounded duty of inquiry.
Such a holding would be inconsistent with
Illinois’s understanding of its own law, which
requires that the statute be interpreted in a way
consistent with its strong consumer protection
purpose. What if Mr. Bober had stopped with the
first telephone call, and never heard the
recorded message? What if he had no access to a
computer, or was not comfortable using one, and
thus never visited the web site? The only answer
that I can give to these questions is that
Illinois law recognizes these risks and that is
why it requires each separate statement to be
assessed on its own. As was the case in Saunders
and Tudor, relevant context is limited to
particular occasions.
Looking at each of the statements individually,
I agree with the majority that the recorded
statement and the web site statement were not
misleading. The recorded message merely advised
callers to consult with their physicians if the
doctor had prescribed Zantac 150, before going
ahead and using Zantac 75 as a substitute. This
is precisely what counsel for the Bober group
insisted at oral argument was necessary and
sufficient as a matter of law, and I agree with
my two colleagues that there is nothing
misleading in such a statement. Even if we
approach this case as one in which two Zantac 75
tablets and one Zantac 150 tablet both deliver
the same amount of ranitidine in the same way
(which is a contested fact at this point), it
remains true that prescription strength
medication and non-prescription medication differ
in important respects not related to the active
ingredient. As the majority points out, there are
different testing and approval procedures
necessary for the different dosage levels of the
identical medication. Perhaps more importantly,
prescription medications as a practical matter
give the patient a package of product and
service: the product is the 150 mg. of
ranitidine, and the service is a combination of
the pharmacist’s monitoring of dosage quality,
amounts, potential interactions with other
prescription drugs known to the pharmacy, and
advice, and the doctor’s ability to conduct
similar medical monitoring, to the extent the
patient needs to report back for prescription
refills from time to time. Those kinds of
services from the pharmacist cost money, just as
any other retail-level service does. Cf. Lester
G. Tesler, Why Should Manufacturers Want Fair
Trade?, 3 J. L. & Econ. 86 (1960) (explaining the
relationship between retail price maintenance and
the provision of retail services); Benjamin Klein
& Kevin M. Murphy, Vertical Restraints as
Contract Enforcement Mechanisms, 31 J. L. & Econ.
265 (1988); Thomas G. Krattenmaker & Steven C.
Salop, Anticompetitive Exclusion: Raising Rivals’
Costs to Achieve Power Over Price, 96 Yale L. J.
209 (1986). It is therefore not surprising that
the version of the product that comes securely
tied to a high level of service costs more than
the "discount" version. A simple recorded message
that tells the patient not to substitute until he
or she finds out why the doctor made a particular
choice is not misleading.
The same analysis applies to the statement on
the web site. Once again, it cautions the reader
to check with the physician before making any
changes in medication. And once again, apart from
matching what we understand plaintiffs now to be
arguing, this advice reflects the accurate fact
that the physician may have had good and
sufficient reasons to prefer the prescription
form of the drug. (Perhaps the physician does not
care; but the web site leaves open the
possibility that the physician may authorize
substitution of the non-prescription form. It in
no way hints that this would be out of the
question.)
The operator, however, gave Mr. Bober a
different message. That message had two parts,
both of which I find problematic. First, the
operator said that Zantac 75 and Zantac 150 were
not the "same medications"; second, he or she
said that Mr. Bober "could not" substitute one
for the other. From the layperson’s point of
view, which Illinois law requires us to use, see,
e.g. Daley v. Datacom Sys., Corp., 585 N.E.2d 51,
66 (Ill. 1991) (affirming appeals court ruling
that demand letters could have misled the parking
violators who received them), both of these
representations might be shown to be misleading.
Even if someone who had spent a career in the
pharmaceutical industry would recognize that as
a matter of federal regulation the two forms of
Zantac are different "medications," see the
majority’s discussion at page 10-11, ante, a
trier of fact might well conclude that an average
consumer, asking whether she could substitute the
products, would be misled by the statement "they
are different medications" into believing that
Zantac 75 could in no circumstances be used to
treat the illness for which she was taking Zantac
150. Webster’s Third New International Dictionary
defines the term "medication" to mean, among
other things, "a medicinal substance:
medicament." Webster’s Third New International
Dictionary of the English Language Unabridged
1402 (1993). The word "medicament" in turn is
defined as "a substance (as a chemical, a
medicine, or an ointment) used in therapy." Id.And finally, the first definition of the word
"medicine" is "a substance or preparation used in
treating disease." Id. At a pragmatic level,
therefore, given that Zantac 75 and Zantac 150
have the same active ingredient and, as we must
assume here, might both be used to treat the same
disease, the average consumer could surely
consider them to be the same medication and would
be misled if told otherwise. There is a
difference in form that might matter, but the
person who heard only the operator’s message
would be misled--or so a finder of fact could
conclude. Cf. Daley, 585 N.E. 2d at 66(emphasizing that whether a statement is
misleading is "a factual issue which must be
decided by the trier of fact."); Gammon v. GC
Services L. P., 27 F.3d 1254, 1259 (7th Cir.
1994) (Easterbrook, J., concurring) (agreeing
that "the trier of fact must inquire whether a
misleading implication arises from an objectively
reasonable reading of [a] communication"
allegedly made in violation of a federal consumer
credit protection statute); United States v.
Kaadt, 171 F.2d 600, 604 (7th Cir. 1949)
(treating question of whether drug label is
misleading as issue for the trier of fact).
The average consumer could also be misled by
the flat statement that one "could not"
substitute Zantac 75 for Zantac 150. Understood
literally, this is simply not true. With the
doctor’s authorization, substitution certainly is
possible, as both the recorded message and the
web site conceded. But that qualification was not
given by the operator. A more trusting caller
might simply give up the quest and never even
think to raise the subject with her doctor.
As an initial matter, therefore, I would find
that the Bober plaintiffs raised a genuine issue
of fact about the deceptive nature of the
operator statement and therefore stated a claim
under the CFA. This statement was not a mere
statement of opinion for CFA purposes, because (a
trier of fact could find) it was made in such a
way that the consumer could reasonably treat it
as a statement of fact. See Totz v. Continental
DuPage Acura, 602 N.E.2d 1374, 1383 (Ill. App.
Ct. 1992); Duhl v. Nash Realty Inc., 429 N.E.2d
1267, 1277 (Ill. App. Ct. 1982).
It is important that we do not, in our zeal to
respect the limits federal law places on the
pharmaceutical industry, adopt an impermissibly
narrow interpretation of a general state law like
the CFA that protects consumers in every market
from acupuncture to zippers. In my opinion, the
majority has made just such a misstep, and I
therefore respectfully register my disagreement
with that part of its opinion.